1 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (rev. & enl. ed. Baltimore: Penguin Books, 1977) (originally published in the New Yorker and in a book published by Viking Press in 1963).Google Scholar

2 Id. at 246–47; her emphasis.Google Scholar

3 Id. at 253–79. One can argue that of the American Constitution, art. I, sec. 6, para. 1; art. III, sec. 2, para. 3, & sec. 3; art. IV, sec. 2, para. 2; the Fifth through the Eighth Amendments and perhaps the Ninth (secs. 1 & 3) are the total of constitutional provisions concerning criminal law, unless the impeachment provisions are included. Of these the only lustration provisions are in art. III, sec. 3, and in the Fourteenth Amendment, sec. 3. This is roughly 5% devoted to criminal law and less than 1% devoted to lustration. This strikes me as a good measure of the constitutional importance of criminal law and of lustration respectively in constitutional thought. That means that criminal and lustration law are not, in my opinion and in the opinion of those who wrote the American Constitution, the major ways of discussing how to constitute the polity, though they are nontrivial and need to be done right.Google Scholar

4 Id. at 106–11.Google Scholar

5 Id. at 108.Google Scholar

6 Noted by Hannah Arendt, Totalitarianism: part 3 of The Origins of Totalitarianism 74–80 (Orlando, Fla.: Harcourt Brace Jovanovich 1968) (originally published 1951) (“Arendt, Totalitarianism”).Google Scholar

7 Pamela Brandwein, “Reconstructing Reconstruction: The Supreme Court and the Production of Historical Knowledge” (Ph.D. diss., Northwestern University, 1994) (“Brandwein, ‘Reconstructing Reconstruction’”).Google Scholar

8 Robert Gordon, James F. Short, Jr., Desmond S. Cartwright, & Fred L. Strodtbeck, “Values and Gang Delinquency: A Study of Street-Corner Groups,” 69 Am. J. SOC. 109, 117–26 (1963).Google Scholar

9 Jane J. Mansbridge. Why We Lost the ERA 60–66 (Chicago: University of Chicago Press, 1986).CrossRefGoogle Scholar

10 Barbara W. Tuchman, The First Salute: A View of the American Revolution 99–100, 104–6 (New York: Knopf 1988).Google Scholar

11 A good exercise to validate this point is to look through military encyclopedias or reference books for an article on civilian casualties in wars. One will even less find judgments in those articles about whether it was just, or even effective, that they were killed.Google Scholar

12 V. S. Naipaul, “Apply the Torture,”in Naipaul, The Loss of Eldorado: A History 182–221 (New York: Vintage Books Random House, 1984) (originally published by Knopf, 1969). The legal point in Naipaul's account was that in British slave islands, slave testimony was not valid. Under Spanish slave law in Trinidad such testimony could be taken but only under government-applied torture to make sure slaves were telling the truth. The British civil governor did not like the torture and tried to get English courts to overturn because of the torture.Google Scholar

13 Ronen Shamir, “‘Landmark Cases’ and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice,” 24 Law & Soc'y Rev. 781, 797 (1990). The Arabs know that there is only a very small chance that they will win their cases. Shamir argues that only a few “landmark” overrulings of military decisions can produce an appearance of legitimacy to friendly audiences, though not to Arabs.Google Scholar

14 Arendt, Totalitarianism 74–80.Google Scholar

15 A good study of attempts to discuss constitutional questions in court cases in the late 18th century in France is Sarah Maza, Private Lives and Public Affairs: The “Causes Célèbres” of Prerevolutionary France (Berkeley: University of California Press, 1993).Google Scholar

16 See the definition of nonadversarial democracy as democracy under the assumption that discussion will lead to the one best answer in Jane Mansbridge, Beyond Adversary Democracy 23–35, esp. 32–33 (Chicago: University of Chicago Press, 1980).Google Scholar

17 For example, too much justice de exception, as the system for taking cases in which the king was interested out of the ordinary courts to be tried by courts under the king's thumb was called in Old Regime France, kept opposition in the parlements at bay; a challenge to the king was always an emergency.Google Scholar

18 For German denazification in the Western-occupied zones, not dealt with much in the cases here, see John H. Hen, “Denazification and Related Policies,”in Herz, From Dictatorship to Democracy: Coping with the Legacies of Authoritarianism and Totalitarianism 15–38 (Westport, Conn.: Greenwood Press 1982). Quick “vigilante justice” in Belgium and France after World War II got substantial denazification done before the petering out, as documented in Huyse's article in this volume.Google Scholar

19 This is prominent in Los's essay in this volume, though she apparently believes that delegitimating of socialist purposes and their supporting social forces did not go far enough. The recent victories of “social democratic” parties with many former officials of the socialist regime suggests that the population has tried capitalism and it does not work and that more delegitimation of socialism would therefore have frustrated the will of the people.Google Scholar

20 See Arthur L. Stinchcombe, Rebecca Adam, Carol A. Heimer, Kim Lane Scheppele, Tom Smith, & D. Garth Taylor, Crime and Punishment: Changing Attitudes in America 32–33 (San Francisco: Jossey Bass, 1980). Since that publication. the incarceration rate has approximately doubled, to about 2.5 prison census per thousand population in state and federal prisons, and 0.7 per thousand in jails, for a total of about 3.2 years served per thousand years of population exposure, while the crime rate per thousand has stayed rock steady. Serious crimes known to the police are in the region of 56 per thousand population years. This gives an average sentence per crime with official existence of about 0.05 of a year. See Statistical Abstract of the United States 1990 at 170, 187 (Washington: GPO).Google Scholar

21 Keith Hopkins, 2 Death and Renewal: Sociological Studies in Roman History 1–2 (Cambridge: Cambridge University Press, 1983).CrossRefGoogle Scholar

22 Brandwein. “Reconstructing Reconstruction” (cited in note 7).Google Scholar

23 Wexler's argument is that penalties that do not do any good except to symbolize the awfulness of the crime are justified. This seems to me morally right, though one wants to be careful that symbols do not thereby become terrorist rather than democratic. But social scientists are not good advisors on how to construct symbols that resist corruption.Google Scholar

24 Max Weber, “Politics as a Vocation,” in Hans Gerth & C. Wright Mills, eds., From Max Weber: Essays in Sociology 77–128 (New York: Oxford University Press, 1946) (essay first published in 1919).Google Scholar

25 James Oakes, Slavery and Freedom: An Interpretation of the Old South 80–136 (New York: Vintage Books 1991); George Orwell, “Shooting an Elephant,”in his A Collection of Essays 154, 159–160 (Garden City, N.Y.: Doubleday Anchor, 1954); Arendt, Totalitarianism (cited in note 6).Google Scholar

26 In modem English, to defame, the information has to be false. In my usage here, the higher the truth value of negative information, the more defamatory it is.Google Scholar

27 Leon Trotsky, 1 History of the Russian Revolution 206–15, trans. Max Eastman (Ann Arbor: University of Michigan Press, 1960; reprinted in one volume with the original 3-volume pagination) (originally published 1932).Google Scholar

28 For a contrast between 18th-century French and American problems of constitution making that emphasizes the interacting problems of federalism and slavery in America, see Jon Elster, “Argumenter et négocier dans deux assemblées constituants,” 44 Rev. Française Sci. Pol. 187 (1994).CrossRefGoogle Scholar

29 For a very similar argument about constitutional opportunities lost in Eastern Europe by lustration, see Bruce Ackerman, The Future of Liberal Revolution 69–98 (New Haven, Conn.: Yale University Press, 1992)Google Scholar

30 Joseph A. Schumpeter, Capitalism, Socialism, and Democracy 269–83, esp. 273n. (New York: Harper & Bros., 1950) (originally published 1942).Google Scholar

31 R. H. Coase, “The Nature of the Firm,” 4 Economica 386 (1937).CrossRefGoogle Scholar

32 This latter is a core argument of John R. Commons's Legal Foundations of Capitalism esp. 97–100 (Madison: University of Wisconsin Press, 1924).Google Scholar

33 Carol A. Heimer, Reactive Risk and Rational Action 123–25 (Berkeley: University of California Press, 1985)Google Scholar

34 Charles Peirce, “How to Make Our Ideas Clear,” in Nathan Houser & Christina Kloesel, eds., 1 The Essential Peirce 124, 136–141 (Bloomington: University of Indiana Press). A rather similar view of “interest” is described in Jane Mansbridge, Beyond Adversary Democracy 24–28 (Chicago: University of Chicago Press, 1980).Google Scholar

35 Compare Jon Elster, “Arguments for Constitutional Choice: Reflections on the Transition to Socialism,” in Elster, ed., Constitutionalism and Democracy 301, 306 (Cambridge: Cambridge University Press, 1985). In discussing how great majorities should be to overturn various aspects of constitutions, he discusses how constitutional conventions or other democratic constitutional processes might decide on criteria of majorities over 50%. They could also decide in similar discussion on what proportion of the population should be citizens and what criteria should distinguish them from noncitizens.Google Scholar